Citation Nr: 0318216
Decision Date: 07/30/03 Archive Date: 08/05/03
DOCKET NO. 02-03 740 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to service connection for allergic rhinitis,
conjunctivitis, and Xerostomia, claimed as congestion and dry
mucosal surfaces of the nose, throat, and mouth, claimed as
secondary to ionizing radiation exposure.
2. Entitlement to service connection for reduced exercise
tolerance and fatigue, claimed as secondary to ionizing
radiation exposure.
3. Entitlement to service connection for chronic sinusitis,
claimed as impaired response to subcutaneous antigen
treatment for allergies, claimed as secondary to ionizing
radiation exposure.
4. Entitlement to service connection for fat intolerance,
claimed as secondary to ionizing radiation exposure.
5. Entitlement to service connection for recurrent skin
malignancies, claimed as secondary to ionizing radiation
exposure.
6. Entitlement to service connection for bilateral cortical
cataracts, claimed as impaired night vision, claimed as
secondary to ionizing radiation exposure.
7. Entitlement service connection for impaired immunoglobins
with non-specific gastrointestinal symptoms, claimed as
secondary to ionizing radiation exposure.
8. Entitlement to service connection for bilateral hearing
loss.
9. Entitlement to service connection for chronic
tracheobronchitis.
10. Entitlement to service connection for residuals of
scarlet fever.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESSES AT HEARING ON APPEAL
Appellant, Appellant's spouse
ATTORNEY FOR THE BOARD
C. Dillon, Associate Counsel
INTRODUCTION
The veteran served on active duty from October 1944 to
October 1946.
This matter arises before the Board of Veterans' Appeals
(Board) on appeal from a February 2000 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Waco, Texas, that denied entitlement to service connection
for the above-claimed disabilities.
In September 2000, the veteran and his spouse appeared and
testified at a personal hearing at the Waco RO before a
Decision Review Officer. A hearing transcript is of record.
Testimony adduced at the September 2000 hearing clarified
several of the pending issues on appeal, and they have
accordingly been recharacterized. See Transcript, pp. 8, 13,
45-46. Although an October 2002 supplemental statement of
the case (SSOC) addressed the issue of entitlement to service
connection for residuals of catarrhal fever, initially denied
in the February 2000 rating decision, the veteran withdrew
that claim at the September 2000 hearing. See Transcript, p.
50.
Although claims of entitlement to service connection for a
sinus condition and an intestinal disease were finally denied
in rating decisions dated April 1949 and February 1953,
respectively, the pending claims are entitled to de novo
review as separate and distinct claims based on an
intervening, liberalizing change in law or regulation, i.e.,
the addition of regulations for adjudicating radiation
claims. See Spencer v. Brown, 4 Vet. App. 283, 288 (1993),
aff'd, 17 F.3d 368 (Fed. Cir. 1994); see also, e.g., Sawyer
v. Derwinski, 1 Vet. App. 130, 133 (1991).
In addition to pathology related to the pending claims, the
veteran's August
1999 and October 1999 submissions note complaints of night
sweats, insomnia, muscular weakness of the extremities, and
anxiety, claimed as secondary to ionizing radiation exposure.
As these issues have not been adjudicated, they are referred
to the RO for appropriate action.
With the exception of the claim of entitlement to service
connection for scarlet fever residuals, the pending claims
are the subject of the REMAND herein.
FINDING OF FACT
The veteran does not have a current residual disability from
scarlet fever.
CONCLUSION OF LAW
The criteria for entitlement to service connection for
residuals of scarlet fever have not been met. 38 U.S.C.A.
§ 1110 (West 2002); 38 C.F.R. § 3.303 (2002).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Duty to notify and assist
There has been a significant change in the law during the
pendency of this appeal. In November 2000, the President
signed into law the Veterans Claims Assistance Act of 2000
(VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law
redefined the obligations of VA with respect to the duty to
assist and included an enhanced duty to notify a claimant as
to the information and evidence necessary to substantiate a
claim for VA benefits.
This change in the law is applicable to all claims filed on
or after the date of enactment of the VCAA or filed before
the date of enactment and not yet final as of that date.
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126
(West 2002); see Karnas v. Derwinski, 1 Vet. App. 308, 312-13
(1991); cf. Dyment v. Principi, 287 F.3d. 1377 (Fed. Cir.
2002) (holding that only section 4 of the VCAA, amending
38 U.S.C. § 5107, was intended to have retroactive effect).
The final rule implementing the VCAA was published on August
29, 2001. 66 Fed. Reg. 45,620, et seq. (Aug. 29, 2001)
(codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)
(2002)). These regulations, likewise, apply to any claim for
benefits received by VA on or after November 9, 2000, as well
as to any claim filed before that date but not decided by the
VA as of that date. See 66 Fed. Reg. 45,620 (Aug. 29, 2001).
VA must notify the veteran of evidence and information
necessary to substantiate his claim and inform him whether he
or VA bears the burden of producing or obtaining that
evidence or information. 38 U.S.C.A. § 5103(a) (West 2002);
38 C.F.R. § 3.159(b) (2002). In the discussions in the
February 2000 rating decision, February 2002 Statement of the
Case (SOC), and October 2002 SSOC, the veteran was notified
of this information. See Quartuccio v. Principi, 16 Vet.
App. 183 (2002). In those documents, the veteran was
informed by the RO of the relevant laws and regulations, and
the RO explained why the evidence in his case was inadequate.
The October 2002 SSOC also included citation to the VCAA and
references the parties' respective duties in terms of
obtaining information and evidence.
VA must also make reasonable efforts to assist the claimant
in obtaining evidence necessary to substantiate the claim for
the benefit sought, unless no reasonable possibility exists
that such assistance would aid in substantiating the claim.
38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d)
(2002). Here, the veteran has not identified any outstanding
records relevant to the claim of entitlement to service
connection for residuals of scarlet fever.
Assistance shall also include providing a medical examination
or obtaining a medical opinion when such an examination or
opinion is necessary to make a decision on the claim.
38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4)
(2002). Examination is unnecessary in this case because the
record does not contain competent lay or medical evidence of
any current residuals of scarlet fever. See 38 C.F.R.
§ 3.159(c)(4)(A). Cf. Charles v. Principi, 16 Vet. App. 370
(2002); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003).
II. Service connection
Service connection means that the facts, shown by evidence,
establish that a particular injury or disease resulting in
disability was incurred in the line of duty in the active
military service or, if pre-existing such service, was
aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West
2002); 38 C.F.R. §§ 3.303(a), 3.304 (2002).
To prevail on the issue of service connection for any
particular disability, there must be medical evidence of a
current disability; medical evidence, or in certain
circumstances, lay evidence of in-service occurrence or
aggravation of a disease or injury; and medical evidence of a
nexus between an in-service injury or disease and the current
disability. See Hickson v. West, 12 Vet. App. 247, 253
(1999); see also Pond v. West, 12 Vet App. 341, 346 (1999).
The evidence in this case establishes that the veteran does
not have any current residuals of scarlet fever. Although
the service medical records document diagnosis and treatment
for scarlet fever in December 1944, there is no competent
post-service evidence of any residuals from scarlet fever;
the evidentiary record contains no documented treatment or
evaluation of signs or symptoms considered by a physician to
be associated with scarlet fever residuals.
When the veteran was asked at the September 2000 hearing
whether otitis media was being claimed as a residual of
scarlet fever, he said "no" and clarified that his current
hearing loss was possibly related to scarlet fever, as it may
have originated from otitis media that he experienced while
suffering from scarlet fever. Transcript, p. 44. The
veteran's pending claims, however, include a claim of
entitlement to service connection for bilateral hearing loss.
Therefore, any current hearing loss disability will be
addressed separately, and the veteran's assertion that his
hearing loss is due to an in-service injury or disease, to
include scarlet fever, will be considered at that time.
Aside from hearing loss, the veteran does not contend that
any of his current disabilities or symptomatology are related
to scarlet fever, and he has not presented competent medical
evidence documenting any scarlet fever residuals.
Essentially acknowledging the lack of competent medical
evidence with regard to any current residuals of scarlet
fever, the veteran testified at the September 2000 hearing
that he did not "see how that can be possible . . . for any
doctor to say 'I see a problem today that was related to
scarlet fever fifty years ago'." Transcript, p. 43.
The existence of a current disability is the cornerstone of a
claim for VA disability compensation. See Degmetich v.
Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the
CAVC's interpretation of sections 1110 and 1131 of the
statute as requiring the existence of a present disability
for VA compensation purposes cannot be considered arbitrary
and therefore the decision based on that interpretation must
be affirmed); see also Gilpin v. West, 155 F.3d 1353 (Fed.
Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225
(1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992).
The competent medical evidence of record does not establish
the presence of current scarlet fever residuals, and the
Board is not competent to supplement the record with its own
unsubstantiated medical conclusions. Colvin v. Derwinski, 1
Vet. App. 171, 175 (1991).
The evidence in this case is not so evenly balanced so as to
allow application of the benefit of the doubt rule as
required by law and VA regulations. 38 U.S.C.A. § 5107(b)
(West 2002); 38 C.F.R. §§ 3.102, 4.3 (2002).
ORDER
Entitlement to service connection for residuals of scarlet
fever is denied.
REMAND
The record contains letters from several physicians, all of
whom certify treating the veteran for various medical
problems pertinent to the pending claims. The medical
records of treatment from these physicians, however, are not
of record, and it does not appear that VA has attempted to
obtain these records.
The veteran is alleging that the first seven listed claims
for service connection are related to in-service ionizing
radiation exposure. Transcript, pp. 53-54. In November
2000, the veteran also submitted a medical statement linking
his hearing loss to radiation exposure in service. Claims
based on exposure to ionizing radiation require a dose
assessment. 38 C.F.R. § 3.311(a). In April 2001, the RO
received notice from the Defense Threat Reduction Agency
(DTRA) that a dose assessment would not be processed until a
radiogenic disease had been identified. While none of the
claimed disabilities is listed as a radiogenic disease under
38 C.F.R. § 3.311(b)(2), the veteran has submitted competent
medical evidence that many of the claimed conditions are
radiogenic diseases. VA must therefore consider these claims
under the provisions of 38 C.F.R. § 3.311. 38 C.F.R.
§ 3.311(b)(4) (2002).
The service medical records show diagnosis and treatment for
acute tracheobronchitis, and the veteran - himself a
physician - has stated that he frequently self-treats for
recurrent tracheobronchitis, which reappears every 90 to 120
days. Transcript, pp. 33-36. With regard to hearing loss,
the record includes a medical diagnosis of hearing loss. VA
should afford the veteran appropriate examinations to
determine the date of onset and etiology of any hearing loss
and chronic tracheobronchitis.
Accordingly, these claims are REMANDED for the following:
1. Make the necessary arrangements to
obtain the veteran's complete medical
records from Dr. Clayton E. Whitney
(since September 1988), Dr. Ronald S.
Davis (since November 1997), Dr. Mark A.
Hardin, Dr. Chris J. Wrenn, Bob Hillert,
Jr., M.D., Dr. Lipglider, Bob Lanier,
M.D., Marvin Connor, M.D., and Clarence
Allen, M.D. As this potential evidence
is not in the custody of a Federal
department or agency, the RO should make
an initial request for the records, and,
if the records are not received, at least
one follow-up request. A follow-up
request is not required if a response to
the initial request indicates that the
records sought do not exist or that a
follow-up request for the records would
be futile. 38 C.F.R. § 3.159(c)(1)
(2002).
2. Obtain a dose assessment from the
DTRA, to include a skin dose summary,
documenting its full consideration of all
sources of in-service ionizing radiation
exposure.
3. After completing the dose assessment,
the case should be referred to the Under
Secretary for Benefits (USB) for an
advisory opinion consistent with the
requirements of 38 C.F.R. § 3.311. In
particular, the advisory opinion should
include a rationale and should be more
than a cursory explanation and
restatement of any opinion obtained from
the office of the Under Secretary for
Health. If the USB is unable to conclude
that it was at least as likely as not, or
that there is no reasonable possibility,
that the veteran's claimed disabilities
were secondary to radiation exposure, the
case should then be referred by the USB
to an outside consultant for further
development consistent with 38 C.F.R.
§ 3.311.
4. Schedule the veteran for VA
examinations, as specified below. The
claims file and a copy of this remand must
be made available to and reviewed by the
examiners prior to the requested
examinations. The examiners should
indicate in their respective reports that
the claims file was reviewed.
All necessary tests should be conducted
and the examiners should review the
results of any testing prior to completion
of the reports.
The medical rationale for the opinions
expressed should be included in the
examination reports.
Hearing Loss/Audio Examination
The examiner should conduct an
audiological evaluation, to determine
whether the veteran has a current hearing
loss disability for VA compensation
purposes.
The examiner should then specifically
render an opinion as to the date of onset
and etiology of any current hearing loss.
The physician should determine whether it
is as least as likely as not that any
current hearing loss had its onset in
service and/or is related to an in-
service disease or injury, including any
in-service acoustic trauma and/or effects
of scarlet fever.
Respiratory Examination
The examiner should specifically render
an opinion as to the date of onset and
etiology of any current upper respiratory
and/or pulmonary disorder, including
tracheobronchitis. The examiner should
determine whether it is as least as
likely as not that any current upper
respiratory and/or pulmonary disorder,
including tracheobronchitis, had its
onset in service and/or is related to an
in-service disease or injury. In
rendering this opinion, the examiner
should review and discuss the service
medical record in detail.
5. Review the claims file and ensure
that no other notification or development
action, in addition to that directed
above, is required by the VCAA. If
further action is required, the RO should
undertake it before further adjudication
of the claims.
6. Readjudicate the veteran's claims,
with application of all appropriate laws
and regulations, including consideration
of any additional information obtained as
a result of this remand. If the decision
with respect to the claims remains
adverse to the veteran, he and his
representative should be furnished an
SSOC and afforded a reasonable period of
time within which to respond thereto.
The veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.44-8.45 and
38.02-38.03.
______________________________________________
P. M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
In the section entitled "Representation before VA," filing
a "Notice of Disagreement with respect to the claim on or
after November 18, 1988" is no longer a condition for an
attorney-at-law or a VA accredited agent to charge you a fee
for representing you.